CAROLYN EVANS Religion and the Secular State in Australia I. SOCIAL CONTEXT Australia is a predominantly Christian country, however, in recent years there has been a strong growth in groups that describe themselves as not having a religion and in religious minorities including Muslims, Hindus and Buddhists. At the 2006 census date, Christians represented 63.9 percent of the population, non-Christian believers represented 6.2 percent (corresponding to over 120 different religious denominations of 250 or more followers), and the remaining 30 percent either stated that they had no religion or declined to state their religion. Forty-four and one-half percent of the Australian population reported that their religion was either Anglican or Catholic, whilst the largest non- Christian religion represented was Buddhism, with 2.1 percent of the population.1 II. THEORETICAL AND SCHOLARLY CONTEXT Australia became a federated nation in 1901 with the coming into effect of the Australian Constitution. Since that time (and indeed for most of the period of white colonization), Australia has been a broadly secular State with Christian influences on law and politics. Section 116 of the Constitution (discussed further below) prohibits the Commonwealth level of government from establishing a religion and, despite no equivalent existing in most State constitutions, no State government has an established religion or is likely to do so. Nevertheless, Christianity remains the dominant religion and elements of Australia’s Christian heritage can be seen in areas such as the reciting of Christian prayers at the opening of parliament2 and the maintenance of Sunday as the most common day of rest.3 Australia is not a particularly religious country compared to many and religion has rarely played a critical role in public life or debates. While religion has played a relatively muted role in Australian public life, several questions have attracted ongoing attention and debate. The first is what role, if any, religious arguments, commitments or values have in public, political life. The second is the extent to which government should contribute financially to religious institutions such as schools, hospitals and welfare agencies and the third is the extent to which those institutions should be exempt from ordinary laws, particularly non-discrimination and human rights laws.4 While religious arguments and commitments have never been wholly absent from Australian political and public life, they have rarely played the focal role that they have in some other countries. Catholic-Protestant sectarianism played a divisive role in Australian public life for a period5 and traditionally the Australian Labor Party has enjoyed greater support from CAROLYN EVANS is Deputy Director of the Center for Comparative Constitutional Studies at Melbourne Law School, University of Melbourne. She is also a barrister and solicitor of the Supreme Court of Victoria. In 2010, Prof. Evans was awarded a Fulbright Senior Scholarship as a Visiting Fellow at American and Emory Universities to examine questions of comparative religious freedom. She is a member of the Academic Advisroy Board of the International Center for Law and Religion Studies, Brigham Young University (Provo, Utah). She thanks Duncan Kauffman for his considerable research assistance with this paper. 1. Australian Bureau of Statistics, 2006 http://www.abs.gov.au/websitedbs/D3310114.nsf/Home/ census? opendocument#from-banner=GT. See also David Marr, “What we Believe,” The Age (Melbourne), 21, 24. 2. Standing Order 38 of the House of Representatives (the lower house of the Australian Federal Parliament) provides that on taking the Chair at the beginning of each sitting, the Speaker shall read two designated prayers including the Lord’s Prayer. Senate Standing Order 50 imposes an identical requirement on the President of the Senate (the upper house). 3. Although not strict sabbatical maintenance as compared to earlier periods of Australian history. Public holidays also still include key Christian holy days such as Christmas, Good Friday and Easter but there are no public holidays relating to other religions. 4. This third issue is dealt with in more detail under heading VI below. 5. See, e.g., Clive Bean, “The Forgotten Cleavage? Religion and Politics in Australia” (1999) 32 Canadian 87 88 RELIGION AND THE SECULAR STATE Catholics and the conservative Liberal Party has enjoyed greater support from Protestants.6 Sectarianism, however, has rapidly declined in Australia and the distinctions between the political parties in religious terms are thus less pronounced. 7 For several decades, Australian politicians rarely mentioned their own religion in public life or raised religious arguments for or against particular policies or in order to attract votes. Some shift in the generally secular approach to politics occurred with the coming to power of the conservative Howard government in 1996, which actively sought greater engagement with Christian groups and increased funding to religious groups to carry out public functions (such as education, health provision, welfare). The Howard government more actively drew on religious (particularly Christian) language and arguments in public debates, and even appointed a bishop to the position of Governor-General. Before the last election, in which the Labor Party was elected to government, Labor leader Kevin Rudd wrote an influential piece on Dietrich Bonheoffer that drew attention to Rudd’s own religious convictions and their importance to his political philosophy.8 Since being elected Prime Minister, Mr. Rudd has continued to refer to Christian principles and his own faith from time to time9 in a way that has been usual in Australian politics before the Howard government. This approach seeks to demonstrate a connection between progressive politics and Christianity rather than ceding the territory of religious influence to the conservative parties.10 The role of religion in public life is still relatively muted, however, and has certainly not reached the levels of the “culture wars” in the United States. Many have criticized the increased religiosity in Australian political and public life because they see this as undermining the secularity of the public square in Australia and as having the potential to re-ignite sectarianism11 or (perhaps more plausibly) to increase tensions between people of different religious faiths and those who have no religion.12 Those critical of the role of religion in public life have also been concerned at the growing government funding given to organizations run by religion.13 For example, there have been groups who have argued for a long time that governments should not be involved in funding religious schools,14 and others who have expressed concern about religious organizations receiving subsidies for running large hospitals.15 A Journal of Political Science 551; Ross Fitzgerald, Adam Carr and William Dealy, The Pope’s battalions: Santamaria, Catholicism and the Labor Split (1st ed., 2003). 6. Matthew Buchanan, “Catholic Politicians Blessed with Rise to Top of Parties,” Sydney Morning Herald (Sydney), 5 December 2009. 7. Marion Maddox, God Under Howard: The Rise of the Religious Right in Australian Politics (1st ed., 2005); Amanda Lohrey, “Voting for Jesus: Christianity and Politics in Australia” (2006) 22 Quarterly Essay 1; Anna Crabb, “Invoking Religion in Australian Politics” (2009) 44 Australian Journal of Political Science 259; Rodney Smith, “How Would Jesus Vote? The Churches and the Election of the Rudd Government” (2009) 44 Australian Journal of Political Science 613; Max Wallace, The Purple Economy: Supernatural Charities, Tax and the State (1st ed., 2007); John Warhurst, “The Catholic Lobby: Structures, Policy Styles and Religious Networks” (2008) 67 Australian Journal of Public Administration 213. 8. Kevin Rudd, “Faith in Politics” (2006) 17 The Monthly 22. 9. See, e.g., Chris Uhlmann, “St Kevin’s Halo May Choke Him,” The Australian (Sydney), 24 October 2009; Janet Albrechtsen, “PM Proves a Convert to The Politics of Faith,” The Australian (Sydney), 15 July 2009. 10.See, e.g., ABC Television, “Kevin Rudd: The God Factor,” Compass, 8 May 2005, available at http://www.abc.net.au/ compass/s1362997.htm; ABC Radio National, “Kevin Rudd: Bonhoeffer and “the political orchestration of organised Christianity,” The Religion Report, 4 October 2006 available at http://www.abc. net.au/rn/religionreport/ stories/2006/ 1755084.htm. 11. See, e.g., Judith Brett, Australian Liberals and the Moral MIddle Class: From Alfred Deakin to John Howard (1st ed., 2003) 54, referring to Editorial, The Vigilant (Melbourne), 25 June 1925; Editorial, “Leave God Alone,” The Australian (Sydney), 10 November 2009. 12. See, e.g., Atheist Foundation of Australia, “Submission to HREOC Discussion on Freedom of Religion and Belief in the 21st Century in Australia” (20 October 2008), available at http://www.hreoc.gov.au/frb/ submissions/ Sub032.Atheist_Foundation.doc. 13. CRU; Adele Ferguson, “God’s Business,” Business Review Weekly, 29 June 2006, at http://blogs. theage.com.au/business/executivestyle/managementline/archives/brw2906p042-046.pdf; Humanist Society of Queensland, “Submission to HREOC Discussion on Freedom of Religion and Belief in the 21st Century” http://www.hreoc.gov.au/frb/submissions/Sub981. Humanist_Society_of_Queensland.doc. 14. A-G (Vic) ex rel. Black v. Commonwealth (1981) 146 CLR 559. 15. See, e.g., Leslie Cannold, “Women Are Being Failed By Our Hospitals,”